On September 25, the District Court in Denver, Colorado issued its
Memorandum Opinion
and Order [34 pages in PDF]. This case is Mainstream Marketing Service,
TMG Marketing Inc., and American Teleservices Association v. Federal Trade Commission,
et al., D.C. No. 03-N-0184, U.S. District Court for the District of Colorado, Judge Edward
Nottingham presiding.

FTC Chairman Timothy Muris stated in his
prepared
testimony that "U.S. District Judge Nottingham in Denver ruled that the Do
Not Call Registry offends the First Amendment because it makes a content-based
distinction between its treatment of commercial telemarketing calls to sell
goods or services and noncommercial calls soliciting charitable contributions.
We believe that as a matter of law this decision is incorrect, and are therefore
confident of ultimate success on appeal. Nevertheless, this legal dispute could
take years to resolve. In the meantime, the status of the Registry is
unsettled."

Muris (at right) said that "it is unclear
the extent to which Judge Nottingham's decision
permits the FCC to access the Registry for enforcement or companies under FCC
jurisdiction to access the Registry for compliance with the FCC's rules."

He added that the Colorado ruling "threatens the ability of the states with
do not call laws to enforce them".

He concluded that "We believe that the FTC is likely to succeed on the merits
of its appeal because the district court's decision reached an unprecedented
conclusion that telemarketers have a constitutional right to continue
telemarketing calls to consumers who have indicated that they do not want these
calls. This holding is at odds with the relevant Supreme Court cases.
Specifically, the court erred in its application of
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York
..." (See, 447 U.S. 557 (1980).)

"I believe our rules will withstand Constitutional challenge.
In the end, I am simply unwilling to accept the notion that the
First Amendment unavoidably bars the American people from
deciding who calls them in the privacy of their own homes. I
assure you that the full resources of the FCC are committed to
defending our rules and taking any steps necessary to
effectively implement and enforce them, to the full extent
permissible by law", said Powell.

He elaborated that "More than ten years ago, Congress vested
the Federal Communications Commission with broad authority to
protect consumers from unwanted calls. In our June order, we
expanded on that effort. Last week, when these rules were
challenged in the 10th Circuit Court of Appeals, the Court
specifically refused to block our rules. It held that
``on the record presented
... [the telemarketing industry] ha[d] failed to establish a
likelihood of success on the merits.´´ Citing the strong public
interest in leaving these rules in place, the Court made clear
that the rules should go forward. Most recently, the Supreme
Court yesterday declined to disturb the Court's ruling."
(Brackets in original.)

He added that "as a practical matter, challenges to the FTC's
rules affect the enforcement of our rules because the statute
instructed the two agencies to work in partnership with one
another to achieve our common consumer protection goals. Over
the past week, three district court decisions (the most recent
issued last night) addressing the FTC's rules have introduced
confusion with regard to the implementation and enforcement of
the national Do-Not-Call Registry. The Colorado district court's
order last night has raised questions about the FCC's ability to
enforce the list. Most directly, to the extent the court's
ruling prevents the FCC from accessing the FTC's database, our
enforcement efforts may be hampered."

Gerald Cerasale, SVP of the Direct Marketers Association,
stated in his
prepared testimony that "We continue to believe that the FTC list is fatally
flawed by important constitutional defects." He also offered several benefits of
telemarketing. He asserted that "many American consumers respond favorably to
telemarketing", that "telemarketing provides employment to many Americans", and
that it "adds competitiveness to the U.S. economy. It provides information on
new products and services and on prices".

Cerasale also raised several objections to the do not call registry. He
stated that "it is imperative that the registration process ensures the accuracy
of telephone numbers that are placed on the do-not-call registry. Internet
registration is subject to abuse. It is our understanding and belief that there
are not sufficient protections in place in connection with Internet registration
to: (1) verify that the numbers were submitted by the persons to whom the
numbers are assigned; (2) determine whether the individual submitting the number
has permission to submit the numbers; or (3) determine that the numbers are not
business numbers (which are not candidates for inclusion on the registry)."
(Parentheses in original.) He also stated that there should be only one do not
call registry, but there remain in effect state do not call registries."

The Act requires departments and
agencies to conduct privacy impact assessments (PIAs) "before -- (i)
developing or procuring information technology that collects, maintains, or
disseminates information that is in an identifiable form; or (ii) initiating a
new collection of information that -- (I) will be collected, maintained, or
disseminated using information technology; and (II) includes any information in
an identifiable form permitting the physical or online contacting of a specific
individual, if identical questions have been posed to, or identical reporting
requirements imposed on, 10 or more persons, other than agencies,
instrumentalities, or employees of the Federal Government."

This memorandum provides
detailed guidance regarding PIAs for electronic information systems and
collections, including when to conduct PIAs, when PIAs are not required, how to
conduct PIAs, and what to address in PIAs.

The memorandum also provides detailed guidance regarding privacy policies
on agency websites used by the public. The memorandum sets a
deadline of December 15, 2003 for departments and agencies to adopt website
privacy policies.

HR 2548 in
the 107th Congress, titled "The E-Government Act of 2002", was signed on
December 17, 2002, and became effective on April 17, 2003. It is Public Law
107-347. It is codified at 44 U.S.C. Ch. 36. Section 208 of the Act, which is
attached as Exhibit B to the OMB memorandum, contains privacy provisions, and
requires the Director of the OMB to issue implementing guidelines.

9/30. The U.S. Court of Appeals
(9thCir) issued its en banc
opinion in EEOC v. Luce Forward, holding that employers (in
this case, a law firm) that require employees to sign arbitration agreements do
not violate Title VII of the Civil Rights Act of 1964, as amended by the 1991
Act.

Luce Forward is a large California law firm
that required employees, as a condition for employment, to sign an
agreement to submit disputes arising out of their employment to binding arbitration.
This is significant because the Civil Rights Act of 1964, as amended in 1991,
provides for trial by jury of employment discrimination claims.

Luce Forward refused to hire as a legal secretary a person who refused to sign
the agreement. He filed a complaint in state court. The
Equal Employment Opportunity
Commission (EEOC) also filed a
complaint in U.S. District Court (CDCal)
on his behalf alleging violation of Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), the Age
Discrimination in Employment Act of 1967 (ADEA), and the Equal Pay Act of 1963
(EPA). The focus of this case is Title VII.

The District Court refused, on res judicata grounds, to award
make whole relief and rejected the EEOC’s request for injunctive relief under
the ADA, the ADEA, and the EPA. However, the District Court enjoined Luce Forward
from requiring applicants to agree to arbitrate Title VII claims and from
enforcing existing agreements to arbitrate those claims. See, 122 F. Supp. 2d 1080.

A three judge panel of the Court of Appeals reversed. It held that employers
may require employees to sign agreements to arbitrate Title VII claims as a
condition of their employment.

The majority of the en banc panel wrote that while it disagreed with the three
judge panel's "conclusion that Circuit City implicitly overruled Duffield, we
need not explore that disagreement in detail. It suffices to note that the panel
opinion has been withdrawn. Id. We now conclude that, although Circuit City did not
overrule Duffield, Duffield was wrongly decided; we therefore overrule it ourselves.

And, since the en banc panel overruled Duffield, it reversed the judgment of
the District Court insofar as it granted the EEOC’s request for injunctive
relief. It added that "With regard to the EEOC's request for injunctive relief on its
retaliation theory, we remand this issue to the district court to address in the
first instance."

Judge Pregerson (joined by Schroeder and Reinhardt) wrote a partial
dissent. He wrote that "Congress in enacting the Civil Rights Act of 1991 did not
intend that employers could force their employees as a mandatory condition of employment
to forego their right to bring future Title VII claims in a court of law."
He added that, in overruling Duffield, "the majority opinion allows employers to
force their employees to choose between their jobs and their right to bring future
Title VII claims in court. That choice is no choice at all."

Judge Reinhardt (joined by Pregerson) wrote a separate dissent.

Trade News

9/26. Sen. Max Baucus
(D-MT), the ranking Democrat on the
Senate Finance Committee, and nine other Senators, wrote a
letter [2 pages in PDF] to President Bush arguing that "Taiwan should
be under consideration for a free trade agreement with the United States." And
more generally, the letter inquires "What are the criteria for determining
whether to negotiate a free trade agreement?"

9/30. Sen. Max Baucus
(D-MT) gave a
speech [5 pages in PDF] ... in which he addressed trade with the Middle
East. He observed that "the true dawn of the information age occurred not in
Silicon Valley, but in the Middle East, where mathematicians first conceived the
idea of the number zero." He stated that "The President's initiative
now seeks to engage the Middle East economically by negotiating a free trade area in the
Middle East by 2013. This is an excellent idea. It would re-ignite economic
growth and expand opportunity in both the United States and the Middle East." He
also promoted S 1121,
the "Middle East Trade and Engagement Act", which he introduced, along
with Sen. John McCain (R-AZ). He said
that "Our bill gives the President the power to allow countries in what we term
the ``Greater Middle East´´ that meet certain conditions -- such as supporting the war on
terrorism and reforming their economies -- to export products to the United States
duty free."

9/30. Trade representatives of Western Hemisphere nations began a four day
meeting in Port of Spain, Trinidad and Tobago. The
Office of the U.S. Trade Representative (USTR) stated in a
release [PDF] the
the purpose of this meeting is "to lay the final preparatory groundwork" for the
Free Trade Area of the Americas (FTAA) ministerial to be held in Miami, Florida
in November.

More News

9/30. President Bush signed
HJRes 69,
the Continuing Appropriations for Fiscal Year 2004. See, White House
release.

9/30. The Federal Election
Commission (FEC) announced that it has assessed administrative fines against
48 party committees, candidate committees, and political action committees
(PACs) for the late or non-filing of reports required by the Federal Election
Commission Act (FECA). The FEC fined several technology related PACs, including
Level 3 Communications Inc. Political Action Committee ($375), EDS Political
Action Committee ($1,000), NCR Corporation Citizenship Fund ($1,000), T-Mobile
Political Action Committee ($1,000), and VENTUREPAC ($6,000). Each of these
fines was for the late or non-filing of the 12 Day Pre-General 2002 reports.
See, FEC release.

9:00 AM - 5:00 PM. Day one of a two day meeting of the
Federal Bureau of Investigation's (FBI)
Compact Council for the National Crime Prevention and Privacy Compact. See,
notice in the Federal Register: August 28, 2003, Vol. 68, No. 167, at Page
51807. Location: Radisson Hotel Old Town Alexandria, 901 North Fairfax Street,
Alexandria, VA.

10:00 AM. The Senate
Finance Committee will hold a business meeting to consider an amendment in the
nature of a substitute to
S 1637,
the "Jumpstart Our Business Strength
(JOBS)" act, a bill to amend the Internal Revenue Code of 1986 to bring the
U.S. foreign income tax regime into compliance with the
World Trade Organization
(WTO) rulings that held the FSC and ETI tax regimes to be illegal export
subsidies. Location: Room 215, Dirksen Building.

12:00 NOON - 1:30 PM. The
Federal Communications Bar Association's (FCBA) Common Carrier Practice
Committee will host a brown bag lunch. The topic will be "Antitrust Law and
the Telecommunications Act of 1996: Broader Implications of the Supreme Court
Trinko Case". The speakers will include Donald Russell (Robbins Russell),
John Thorne (Verizon), and Chris Wright (Harris Wiltshire). RSVP to Cecelia
Burnett at 202 637-8312 or
cmburnett@hhlaw.com. This event was originally scheduled for September 18,
but was rescheduled because of Hurricane Isabel. Location: Hogan & Hartson,
555 13th Street, NW, lower level.

9:00 AM - 5:00 PM. Day two of a two day meeting of the
Federal Bureau of Investigation's (FBI)
Compact Council for the National Crime Prevention and Privacy Compact. See,
notice in the Federal Register: August 28, 2003, Vol. 68, No. 167, at Page
51807. Location: Radisson Hotel Old Town Alexandria, 901 North Fairfax Street,
Alexandria, VA.

10:00 AM. The Trade Policy Staff Committee (TPSC) will hold a public
hearing to assist the U.S. Trade Representative
(USTR) in preparing a report to the Congress on the People's Republic of
China's compliance with its World Trade
Organization (WTO) obligations. Location: Truman Room, White House
Conference Center, 726 Jackson Place, NW. This hearing had previously been
scheduled for September 18, but was postponed because of the weather. See,
notice in the Federal Register, September 30, 2003, Vol. 68,
No. 189, at Page 56374.

12:00 NOON. The
Cato Institute will host a panel discussion
titled "Regulations ``R´´ U.S.? The State of the Regulatory State". The
speakers will be John Graham (Office
of Management and Budget), David Schoenbrod (New York Law School), and
Clyde Wayne Crews (Cato). See,
notice.
Lunch will be served. Location: Room B-369, Rayburn Building.

12:00 NOON. The Federal Society will host a luncheon
titled "I.P. in the Digital Age". For more information, contact
David Ray at 202 822-8138. Location: Murrow Room, National
Press Club, 529 14th St. NW, 13th Floor.

Extended deadline to submit comments to the
Executive Office of the President's (EOP)
Office of Science and Technology Policy's (OSTP)
National Science and
Technology Council's (NSTC) Subcommittee on Research Business Models
regarding the relationship between federal agencies and researchers. The NSTC
published its original
notice in the Federal Register on August 6 stating that it "is undertaking a review of
policies, procedures, and plans relating to the business relationship between
federal agencies and research performers with the goal of improving the
performance and management of federally sponsored basic and applied scientific
and engineering research." See, Federal Register, August 6, 2003, Vol. 68, No. 151, at Pages
46631 - 46632. See also,
notice of extension in the Federal Register, September 16, 2003, Vol. 68,
No. 179, at Pages 54226 - 54227.

10:00 AM. The U.S. Court of Appeals (FedCir)
will hear oral argument in Intouch Group v. Amazon.com, No. 02-1631.
This is an appeal from the U.S.
District Court (NDCal) in a patent infringement case (D.C. No.
C-00-1156-DLJ) involving internet audio technology.
Intouch alleged that
Amazon's, and others', method of
interactive delivery of portions of recorded music infringe its business
method patent. See,
U.S. Patent No. 5,237,157, titled "Kiosk apparatus and method for point of
preview and for compilation of market data", and
U.S. Patent No. 5,963,916 titled "Network apparatus and method for preview
of music products and compilation of market data". Location: Courtroom 203,
717 Madison Place, NW.

Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists,
federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
information page.